Wheeler v Scalise, 2024 ABKB 38

Court of King’s Bench of Alberta Citation: Wheeler v Scalise, 2024 ABKB 38 Date: 20240122 Docket: FL01 33674 Registry: Calgary Between: Natalie Starr Wheeler Respondent/Cross-Applicant - and - Gabriel Scalise Applicant/Cross-Respondent _______________________________________________________ Endorsement of the Honourable Justice L.M. Angotti _______________________________________________________ [ 1 ] The parties had a brief relationship of approximately 5 months, following which one child was born in 2020. The child is now three years old. [ 2 ] Mr.

Scalise, who was self represented at the Special Chambers hearing, applied for a variation of parenting to have shared parenting of the child, while maintaining the current joint decision making by the parents. [ 3 ] Ms. Wheeler, represented by counsel at the hearing, applied for sole decision making, while maintaining the father’s supervised parenting time. [ 4 ] The procedural history of this matter is important. About one month after the child was born, Ms. Wheeler obtained an EPO.

It was changed to a Mutual No Contact Order by consent of the parties, which expired on Oct 29, 2021. [5] On Aug 8, 2021, a Consent Parenting Order was granted, with a gradually increasing

schedule for the father’s parentingtime. First, the father would have supervised parenting every weekend for one two hour period starting March 20, 2021. Families Firstwould provide the supervision. If there were no concerns raised, then Mr. Scalise would have unsupervised parenting time every Sundayfor four hours and every Wednesday for 2 hours starting May 15, 2021. As of July 24, 2021, the parenting time would increase everySunday to 6 hours. The parties had joint decision making. [6] On July 29, 2021, the parties engaged in an Early Intervention Case Conference.

From the EICC, the parties entered into aConsent Interim Parenting Order, filed Sep 17, 2021. The Order maintained joint decision making. The step-up parenting regimecontinued, with Mr. Scalise to have parenting for 8 hours every Sunday and 3.5 hours every Wednesday. As of August 14, 2021, thefather had parenting every Wednesday for 3.5 hours and every second weekend for 8 hours on Saturday and 8 hours on Sunday. StartingOctober 10, 2021, Mr. Scalise’s weekend parenting time changed to 8 hours on Sunday and 10 hours on Monday.

Starting January 2,2022, overnight parenting commenced every second Sunday at 10 am until Monday at 6 pm, while the Wednesday parenting continuedunchanged. [7] One further change in the parenting

schedule was to occur. However, before the date it was to take effect, Ms. Wheelerobtained a second EPO against Mr. Scalise on March 16, 2022. The EPO included the child. Thus, the father’s parenting time wassuspended subject to any subsequent parenting court order. The EPO was confirmed on June 10, 2022, following a viva voce hearing,including the suspension of parenting time subject to any future court order. [8] Following confirmation of the EPO, Mr. Scalise applied to vary parenting and Ms. Wheeler applied for a Practice Note 7(“PN7”) Order. On August 4, 2022, the Court ordered that Mr.

Scalise’s application to vary was adjourned to a Special Chambershearing, which ultimately was the hearing that took place on January 11, 2024. In the interim, supervised parenting time was directed for2 hours every Sunday, commencing August 21, 2022. Sheriff King would provide the supervision. Also, a PN7 Parent PsychologicalEvaluation Intervention was ordered, for the evaluation of Mr. Scalise, with costs to be shared proportionately by the parties. [9] The father then brought an emergency application to vary parenting and remove the supervision requirement.

The applicationwas heard on April 21, 2023, wherein the parenting was permitted to occur at the paternal grandmother’s residence, but would continueto be supervised, now by Families First. [10] In making this decision, I have considered Young v Young, (SCC), [1993] 4 S.C.R. 3; Richter v Richter,2005 ABCA 165; RAL v RDR, 2007 ABQB 79; and TS v AVT, 2008 ABQB 185. As the parties were not married, this application isgoverned by the Family Law Act, S.A. 2003, c. F-4.5. Section 34(3) requires a change in the needs or circumstances of the child since thelast order, before the court may vary a previous parenting order.

The EPO granted in 2022 that suspended parenting subject to any futurecourt order constitutes the necessary change required for a variation of parenting; all subsequent parenting orders were simply temporarymeasures in place until parenting could be reviewed at a Special Chambers hearing. [11] Therefore, a determination with respect to parenting, including decision making, must consider only the best interests of thechild, as set out in s 18 of the Family Law Act. I must ensure the greatest possible protection of the child’s physical, psychological, andemotional safety.

Other factors I have considered in this matter are family violence, the relationship between the child and each parent,the ability and willingness of each parent to care for and meet the needs of the child, the ability and willingness of each parent tocommunicate and co-operate on issues affecting the child, and the ability and willingness of each parent to exercise the powers,responsibilities, and entitlements of guardianship. [12] The definition of family violence in the Family Law Act is not exhaustive. Family violence is also defined in the ProtectionAgainst Family Violence Act, R.S.A. 2000, c.

P-27 (“PAFVA”). In order for an EPO to be granted, family violence must have occurred asdefined in the PAFVA. As an EPO was granted and confirmed following an oral hearing in this matter, I find that family violence hasoccurred in the past and must be considered on this application. The confirming EPO stated that “[t]here shall be no inference made oradversity against either party from this decision with regard to any future parenting proceedings.” However, this does not mean that theCourt must ignore the facts found at the EPO in considering family violence as it relates to parenting.

Rather, it means that parentingshould not be denied simply because an EPO has been granted and the best interests of the child must be considered in the context of allof the evidence now before the Court. [13] The family violence considered in the EPO arose during a parenting exchange in mid-March 2022. Mr. Scalise removed thechild from his vehicle to hand him over to the mother. While holding the child, the father denigrated the mother to the child, usingprofanity and significant insults.

He then placed the child down in the middle of the parking lot with one shoe and no jacket, and droveaway rather than handing the child to his mother with appropriate care. Justice Jeffrey found this to be verbal abuse of Ms. Wheeler inthe presence of the child and that Mr. Scalise’s actions frightened the child, putting at risk the child’s healthy self-image and emotionaldevelopment, which impacts the child’s sense of security. [14] Ms. Wheeler also deposed to family violence while she was pregnant, with the father screaming, chasing her down thehallway, and punching a hole in the wall.

She also deposed to other parenting exchanges where he has used profanity, aggressive ordegrading verbal language, and intimidating body language toward the mother or her companions in the presence of the child. Mr.Scalise stated in his affidavit that there were difficulties between the parties during parenting exchanges. The evidence is not sufficient toestablish that Mr. Scalise engaged in a physical assault on any individuals during the parenting exchanges, but establishes that theconflict between the parties manifests itself frequently during parenting exchanges and that Mr.

Scalise is the main instigator andperpetrator of the conflict. [15] In addressing family violence as it relates to parenting, I must consider the impact of the family violence upon the safety ofthe child, the child’s general well-being, the ability of Mr. Scalise (who engaged in the family violence) to care for and meet the needs ofthe child, and the appropriateness of making an order that would require the parents to cooperate on issues affecting the child. [16] The child’s physical safety has not been compromised by the family violence. The child’s general well-being has been

impacted on a few occasions during the parenting exchanges, by the impact upon his emotional and psychological health when his father engages in inappropriate behaviour. [ 17 ] An order that requires these parents to cooperate on issues affecting the child is not appropriate. The evidence establishes that Ms. Wheeler has attempted to engage Mr. Scalise about the needs of the child in a constructive manner, which has not been reciprocated. Mr. Scalise has demonstrated an inability to engage with the mother in any civil or cooperative manner, continually letting out his anger towards her improperly.

For example, when the paternal grandparents came to a parenting exchange rather than Mr. Scalise and the mother provided some medication with instructions to the grandparents, Mr. Scalise berated and degraded her in the parenting communication app for such actions, because “she was trying to tell them what to do.” Ms. Wheeler’s provision of instructions about the medical needs of a child would be expected of any parent when the parenting exchange occurs. Other communications by Mr.

Scalise in the parenting communication app also show that he is unable to cooperate with the mother on issues involving s 7 child support, coordination of winter clothing and backpacks for the child, or medical needs of the child. [ 18 ] Mr. Scalise has also demonstrated an inability to engage constructively with important third parties involved in the child’s life. As a result of the chronic high conflict between the parties that involved the police, the Domestic Conflict Response Team of the Calgary Police Service became involved to try and assist the parties in controlling their conflict. Mr.

Scalise sent an email communication to the police officer assigned to the parties, filled with profanity, abusive language, and aggression towards Ms. Wheeler, her acquaintance, and the police. [ 19 ] Mr. Scalise also engaged in such behaviour with two of the child’s daycares, both resulting in the daycares refusing to care for the child any further. Mr.

Scalise confirmed in the Special Chambers hearing that he sent the texts to the daycares that were contained in the affidavits, but excuses them on the basis that he was simply trying to view the facility to make an informed decision on where the child should attend daycare. However, the last communication with the second daycare occurred after the October 13, 2023 Court Order, which order directed the daycare in which the child would be registered and that neither party was to take any action that might reasonably cause the daycare to deny service to the child. Mr.

Scalise’s communication to the daycare was not only uncooperative and ineffective, but it was also abhorrent how he treated the recipient of the email. [ 20 ] In response to a request from Mr. Scalise’s counsel for medical records of the child, the child’s physician advised that, in only her second interaction with Mr. Scalise, he was upset about a notification he received that the child had attended for a medical appointment. As the physician attempted to obtain details with respect to the notification and advise that she would make further inquiries with respect to the notification system, Mr.

Scalise became very angry, used profanity, and ultimately ended the call prematurely by hanging up on the physician. His angry behaviour continued with the physician’s staff as they attempted to explain to him how he could obtain his son’s medical information and change physicians, if he wanted to. In his oral submissions, Mr. Scalise took the position that this letter was not accurate, although he did not address it in an affidavit. It was not a letter written at the request of Ms. Wheeler, but rather at the request of Mr. Scalise’s counsel.

The description in the letter of his behaviour is consistent with the behaviour Mr. Scalise has exhibited in his communications with other third parties, whom he believes do not respect what he views as his fatherhood rights. [ 21 ] Mr. Scalise has shown that he can act in an appropriate manner towards adults involved in his son’s life, given his conduct while under supervised parenting and his attendance for a psychological assessment. The supervised visit reports show that Mr.

Scalise is able to provide for and meet the needs of the child while parenting and he does not engage in the use of derogatory or abusive language about the mother or others involved in the child’s life. As well, when Mr. Scalise was not under supervised parenting, there is no evidence that he was unable to provide appropriately for the child’s needs, except at the parenting exchanges. The evidence supports that the relationship between Mr. Scalise and the child is positive and strong. [ 22 ] I have reviewed the report of Dr. Matsalla, which both parties accepted as the PN7 report ordered by the Court.

The Matsalla Report was provided to me at the hearing and had been given to the parties, in the absence of Dr. Matsalla signing the PN7 Order, in a manner contrary to the terms of such an order. Both parties paid their share of Dr. Matsalla’s fees, they believe in accordance with the proportionate sharing directed by the Court. Mr. Scalise took steps to ensure the Matsalla Report was completed in time for the hearing and relies upon it as showing that there are no concerns with him as a parent. Ms.

Wheeler advised that, while she continued to have concerns about the father given her observations of his behaviour, she would accept the report for the purposes of the hearing. As it did not identify any mental health concerns of the father, she would no longer seek supervised parenting. [ 23 ] I have concerns about the Matsalla Report, including whether it can truly be considered a PN7 report as it was prepared without an Order of the Court (properly signed and filed) and Dr. Matsalla acted contrary to some terms of the draft order sent to her. I also have unanswered questions about Dr.

Matsalla’s professional status, given the information to the Court that she had retired before the end of 2023. I question whether a fulsome investigation was completed, as it does not appear that Dr. Matsalla was aware of Mr. Scalise’s various communications to third parties. Given these red flags, I am only prepared to use the content of the report for the purposes of this hearing as it relates to the results of the psychological testing applied to the father, which was accepted by both parties.

I do not accept the report as an appropriate PN7 assessment of the father, as ordered by the Court, and leave open the question whether Dr. Matsalla is a qualified expert to appear before the Court or whether the report will be acceptable for any future hearing between the parties. [ 24 ] The Matsalla Report concludes that the father does not have any mental health problems “...that would interfere with his judgement, day-to-day functioning, or ability to get along with others” and he does not lack the knowledge of child development or disciplinary strategies to effectively parent.

What is troubling is the contrast between the results of the psychological testing that Mr. Scalise does not have any health impediments to his ability to get along with others, any issues with self control, or any proneness to aggression or anger, and the documentary evidence before me as to Mr. Scalise’s angry and aggressive communications to police officers, lawyers, daycare providers, medical caregivers, and Ms. Wheeler. It is very concerning that Mr.

Scalise acts in this manner towards these individuals, despite having the social skills and mental ability to properly control his anger and act in socially acceptable ways. I can only conclude that his inappropriate actions towards others involved in the child’s life arise from deliberate and conscious decisions to act in such a deplorable and unacceptable manner.

[ 25 ] In

summary, Mr. Scalise blames everyone else for the current level of interaction that he has with the child and any perceived infractions upon his decision making authority. He has proven himself unable to engage in a civil or constructive manner with third parties who have important roles in meeting the needs of the child. Rather, he resorts to degrading, disrespectful, spiteful, and angry verbal criticism and verbal abuse in attempts to reach his goal, and remains unable to understand why he is not successful in achieving his desired result.

What his behaviour demonstrates is that he is unable to act in the best interests of the child when he needs to engage with Ms. Wheeler or any third parties who are required to provide for the needs of the child. [ 26 ] There is one concerning instance of inappropriate behaviour by the mother, when she posted on some form of social media or electronic communication a picture of the child with a caption that contains negative commentary on the father’s family. It is inappropriate to post pictures or other content that associates the child with negative commentary about a parent or the parent’s family.

It does not encourage the child to have positive relationships with those individuals and it places the child in the middle of the conflict between the parents, which is never acceptable. [ 27 ] I find that it is in the child’s best interests that Ms. Wheeler have sole decision making. I find that it in the child’s best interests that the child’s parenting time with Mr. Scalise is no longer supervised, but such parenting time is to increase gradually until the parenting time amounts to parenting time one evening per week and parenting time every second weekend.

Given the lack of any ability or demonstrated willingness of Mr. Scalise to cooperate or effectively communicate with Ms. Wheeler on parenting matters, it is not appropriate to establish a shared parenting regime. Shared parenting requires a sincere and genuine willingness by both parents to work together in the best interests of the child. Mr. Scalise has failed to demonstrate this in any manner, despite Ms. Wheeler’s attempts to work with him in a constructive manner. [ 28 ] Mr. Scalise needs to understand the repercussions of all his behaviour regarding the child, not just his ability to care for the child.

An unfortunate or poor situation is not always someone else’s fault. The father’s behaviour throughout the child’s life has been a major factor in the current parenting status, as compared to the parenting orders of the summer of 2021, and is a major factor in this decision. It is commendable that he behaves and parents well on supervised parenting visits and that he engages positively with his son.

However, he needs to engage in polite, respectful, and productive behaviour to work with the mother and necessary third parties in the best interests of the child, rather than choosing the destructive path that he has taken over the last few years. [ 29 ] Therefore, I direct on an interim basis, pending trial of this action, that: 1. Ms. Wheeler shall have sole decision making of the child, for all major decisions as enumerated in section 21(6) (

b) to (

j) of the Family Law Act , S.A. 2003, c. F-4.5 . She shall consult with Mr. Scalise on any such major decision, but such consultation may cease for a particular decision if Mr. Scalise communicates during the consultation in a manner that is rude or abusive. 2. The party with care of the child is entitled to make day to day decisions for the child, that are not considered major decisions.

In the event of a medical emergency, the party in whose care the child is at the time shall make the required decision and shall communicate with the other party as soon as possible all information pertaining to the medical emergency. 3. Both parties are entitled to any important information and professional records about the child’s health, education, childcare, or other important information about the child. 4. Ms. Wheeler shall ensure that: a. all third parties involved in the education, childcare, health, or organized activities of the child are aware that the child is the child of both Ms. Wheeler and Mr.

Scalise; b. she registers the child using the child’s full legal name; c. the third party is aware that Mr. Scalise is not a decision maker, but is authorized to receive from the third party health, education or other information that may significantly affect the child; d. she advises Mr.

Scalise of the identity of any third party that provides education, childcare, medical care, or organized activities to the child and any important information regarding the child’s health, education, child care, or organized activities; and e. she advises the father details of any important health, education, childcare, extracurricular, or other important events in the child’s life as soon as reasonably possible upon Ms. Wheeler becoming aware of the event. 5. Notwithstanding the above terms, Mr.

Scalise is prohibited from contacting any third party childcare provider or their employees, and from attending at the location of any third party childcare provider providing services to Ms. Wheeler and the child. Ms. Wheeler shall ensure that the third party childcare provider is aware of this term of the Order. 6. Except as otherwise provided in this Order, all communications between the parties shall occur through the current parenting communication app used by the parties. All such communications shall be polite and future focused, and must pertain directly to the child.

Neither party shall show or discuss with the child any of these communications. 7. Neither party shall make disparaging remarks or negative comments about the other parent directly to the child or in the presence of the child, or in an indirect manner that may come to the attention of the child. 8. Neither party shall discuss any of the legal matters or disputes within earshot of the child and shall not share with the child any information with respect to the legal matters or disputes. 9.

Neither party shall make any posts on any form of social media or by other electronic means, with respect to the child that, directly or indirectly, reflect negatively upon the other parent.

10. The variation of current parent order shall not take effect until Jan 28, 2024, such that the current supervised parenting time remains in effect until such date. 11. Ms. Wheeler shall have primary day to day care of the child, and shall have parenting time unless Mr. Scalise has parenting time. 12. The new parenting regime shall commence on January 28, 2024 as follows: a. Starting January 28, 2024, Mr. Scalise shall have unsupervised parenting, with parenting every Sunday from 1 pm to 5 pm. b.

Starting February 25, 2024, parenting shall be every Sunday from 10 am to 6 pm and every Wednesday from 530 pm to 730 pm. c. Starting March 23, 2024, parenting shall continue every second weekend on Saturday from 10 am to 6 pm and Sunday from 10 am to 6 pm and every Wednesday from 530 pm to 730 pm. d. Starting May 4, 2024, parenting shall continue every second weekend on Saturday from 10 am to Sunday at 6 pm and every Wednesday from 530 pm to 730 pm. Based on this schedule, Mother’s Day (May 12, 2024) shall fall within Ms. Wheeler’s parenting time and Father’s Day (June 16, 2024) shall fall within Mr.

Scalise’s parenting time. e. Starting June 28, 2024, parenting shall continue every second weekend on Friday from 530 pm to Sunday at 6 pm and every Wednesday from 530 pm to 730 pm. f. There shall be no change in the parenting

schedule as a result of the Child’s birthday for 2024. The father may not seek a variation of parenting time for the purposes of vacation, summer, or Christmas holidays until October 1, 2024. 13. Exchanges of the child shall occur at the 7-Eleven located at 311 16 th Ave NE Calgary. However, Mr. Scalise is prohibited from attending the exchanges and must arrange for a third party to bring the child to the exchange. Mr. Scalise will advise Ms. Wheeler one hour or more prior to the exchange, by text message, who will be attending the exchange on his behalf. Ms.

Wheeler may bring a third party with her to the exchange, if she wishes. 14. Any information with respect to the child’s care and needs, such as but not limited to the child’s health, sleep, eating habits, or other matters, that are important for the other parent to know for their parenting time, shall be written into a notebook by the parent with knowledge of the same, in a manner similar to the practice done during supervised parenting. The notebook shall be provided to the parent whose parenting time is commencing, during the parenting exchange. The notebook shall be used solely for this purpose. 15.

If a parent intends to change his or her place of residence or that of the child, they are required to notify the other parent, at least 60 days before the change or within such other period before the change as the court may specify, of the change, the date on which the change will be made, and the new place of residence for the parent or the child. Both parents are prohibited from relocating with the child outside of the City of Calgary without the other parent’s permission or a Court order.

Each parent shall ensure that they provide updated contact information to the other parent, in the even their contact information changes. [ 30 ] Mr. Scalise sought costs of $6,000 for his former counsel’s efforts in setting up the PN7 assessment and his own subsequent efforts to have it completed. He submitted that the Court’s order for the PN7 report required Ms. Wheeler’s counsel to arrange for the PN7 assessment. However, the Court Order states, “…the Parties shall cooperate to complete a Parent Evaluation Practice Note 7 Intervention.” Therefore, the onus was on the parties to cooperate.

The communications set out in the evidence show that counsel for the parties did cooperate in finding a new parenting expert after the initial parenting expert chosen was no longer available, drafting and signing the PN7 order, and attempting to arrange to have the assessment completed. Ultimately, Mr. Scalise’s counsel had agreed to and appears to have sent the PN7 order to Dr. Matsalla. In December 2023, his counsel advised Ms. Wheeler’s counsel that the parenting expert was going to retire at the end of the year, at which time a report had not been completed. Ms.

Wheeler paid her proportionate share of the expert fees. The evidence does not support that Ms. Wheeler or her counsel delayed the retainer of the expert or the completion of the assessment. Mr. Scalise’s application for costs are denied. [ 31 ] As both parties have been partially successful and partially unsuccessful on their respective applications, no costs are awarded. Heard on the 11 th day of January, 2024. Dated at the City of Calgary, Alberta this 22 nd day of January, 2024. L.M. Angotti J.C.K.B.A. Appearances:

Adam Benarzi Benarzi Law For the Respondent/Cross-Applicant Gabriel Scalise Self-Represented Litigant for the Applicant/Cross-Respondent